Is the GOP plan to withhold congressional pay constitutional?

The House of Representatives yesterday passed a Republican debt-ceiling proposal providing that if either chamber of Congress hasn't passed a budget resolution for the upcoming fiscal year by April 15, the congressional payroll office must withhold the paychecks for the members of that body.

In other words, they wouldn't get paid until they act or until the current session of Congress ends in 2015.

But is that provision constitutional?

The 27th Amendment, added to the Constitution in 1992, is intended to prevent members of Congress from giving themselves a raise. But it doesn't merely say that any raise can't take effect until the next Congress. It says members cannot vary their own pay.

Here's the entire text of the amendment: "No law, varying the compensation for the services of the senators and representatives, shall take effect, until an election of representatives shall have intervened."

The debt limit bill, said House Ways and Means Committee Chairman Dave Camp, "was carefully crafted to comply with the requirements of the 27th Amendment."

"The amount that members are paid will not be reduced nor will it be raised," Camp said during Wednesday's House debate. "There is no requirement in the 27th Amendment which states that members have to be paid weekly, biweekly, monthly, or bimonthly, or what have you, only that the pay that they receive will not vary."

Not so, said Rep. Robert Brady, a Pennsylvania Democrat, who believes putting the money in escrow, as the House bill provides, doesn't solve the issue. "If you aren't getting a paycheck in a month and you're going to wait for 18 months, that's varying. So it could be -- and, in my opinion, it is -- a constitutional problem," he said.

Who's right? Does holding the checks, but ultimately giving members their money, avoid a constitutional defect?

Professor Michael Froomkin of the University of Miami School of Law doesn't believe it's constitutional.

"I don't think this is even a close question: In my view, the escrow provision clearly does not [avoid the constitutional defect]," Froomkin said.

"The prohibition on varying the compensation seems pretty clear to me. It means no changes in amount and no changes in time of payment, because there is a time value to money. Anyone who gets a salary would think it a very material change in the terms if the money were escrowed for more than a year and a half instead of being made available to pay the mortgage," he added.

The opposite view came in a statement released by the House Ways and Means Committee, written by conservative lawyers David Rivkin and Lee Casey. "It is creative, it is fiscally responsible, and it is attentive to the text and structure of the Constitution," they said.

Some consideration was given to putting the deferred paychecks into an interest-bearing account, but Republicans rejected that idea, concluding that it would increase members' pay in clear violation of the 27th Amendment.

The Supreme Court has never interpreted the amendment, and no member of Congress has yet come forward to suggest suing over the escrow provision. Given the Supreme Court’s narrow view of who has legal authority to sue, it’s likely only a member of Congress who had a paycheck withheld would have the proper standing to challenge it.